It still happens today. Lesbian mothers lose custody of their children to their ex-husbands because they are lesbian. Hard to believe, in this era when conservatives often support civil unions -- just not marriage -- for same-sex couples. But it's true.
And that's what happened to Angela Maxwell and her three children earlier this year when a Hardin County, Kentucky judge awarded sole custody to the children's father, Robert. The judge also limited Angela's time with the children and said neither parent could live with a nonmarital partner while the children were with that parent. For more than a year before the trial, the children who were about 14, 12, and 6, had been alternating weeks between the two parents. That temporary arrangement included a prohibition on unrelated guests spending the night when the children were there, so it appears that Angela was not living with her same-sex partner, Angel. At the custody trial, Angela asked that the joint custody continue and that the overnight restriction be lifted.
The trial judge was not subtle about the reason she awarded sole custody to Robert. "The [mother] is seeking to live an unconventional life-style that has not been fully embraced by society at large," the judge ruled, "regardless of whether or not same-sex relationships should or should not be considered sexual misconduct. Like it or not, this decision will impact her children in ways that she may not fully have considered and most will be unfavorable."
In an opinion released today in Maxwell v. Maxwell, the Court of Appeals reversed, noting that there was no evidence that the children were harmed by their mother's relationship. The child were doing well; the two older children wanted the every-other-week schedule to continue; and the youngest child's teacher thought a change in the custody arrangement would not be good for the child.
The trial judge had relied on an earlier case holding that the court did not have to wait until children were harmed to consider a parent's misconduct. But the appeals court said the issue was whether being in a same-sex relationship is sexual misconduct. The court found it was not, citing the decriminalization of sodomy and a Kentucky case awarding visitation rights to a nonbiological lesbian mother (which I wrote about here). The court went further, however. It cited the US Supreme Court decision in Romer v. Evans for the principle that "homosexuals cannot be singled out for disparate treatment," which the trial judge had done here. It also cited Palmore v. Sidoti, in which the Supreme Court found unconstitutional a change in custody of a white child based on her mother's marriage to a black man, for the principle that "custody cannot be denied based on the biases of others." The court also cited a Kentucky case for the principle that Angela had a fundamental right to raise her children, concluding that "it is a violation of Angela's due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor."
The trial judge had cited as future harm to the children the possibility that they might be teased about their mother's relationship. The appeals court properly pointed out that if that happens it will occur whether their mother has custody or not, and that it is more harmful to the children to deprive them of a loving and positive relationship with their mother.
With all of this, and the great principle this case stands for, I offer a number of caveats. First, as I began this post, this mother should have never lost in the first place. Most custody disputes settle before trial. They settle in the shadow of what will happen in court. It is very expensive and emotionally draining to go through a trial and then an appeal. Knowing that a trial judge can rule the way this one ruled can influence a gay or lesbian parent to accept a bad settlement (like one that includes a restriction on living with a partner, or that settles for visitation rather than custody). And that still happens today, in 2012, precisely because of the bias this trial judge showed.
Which leads to my next caveat. This trial court was transparent about its reasoning. All parents make mistakes and there is almost always something other than sexual orientation that a judge can use as a basis for a decision. In fact, in spite of this appellate court win, the court sent this case back to be retried. In other words, it's not over yet for Angela Maxwell and her children (I can only hope they settle at this point.) Even the prohibition on her partner's overnight presence is still on the table; there just need to be evidence tying the restriction to the children's best interests. Some children are uncomfortable with a parent's same-sex partner, and that has been used over and over to justify restrictions. The two older Maxwell children said they liked their mother's partner, but what if they hadn't? Furthermore, all the children were doing well; the appeals court calls them "flourishing." Well, not all children do well. It is still possible for a trial judge to find a causal link where none exists between a parent's sexual orientation and the problems that a child might be experiencing.
And here is a final caveat. The appeals court says this to the trial court's consideration of the children's best interests on remand when it comes to the restriction on Angela's partner: "Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant." I'm thinking the changes-in-moral-standards part is about how homosexuality isn't thought of as immoral in the way it once was. But the inability to marry part? Are we headed to a time, when same-sex marriage is more common, when a gay parent will be faulted in a custody dispute for not marrying a same-sex partner? That's not a day I look forward to.....